Giving Federalism the Middle Finger
By: Suzanne Sherman
The impulse to turn everything into a federal case – even something a personal as an obscene finger gesture – flips the middle finger at the political system the founders created.
Whether you agree with the behavior or not, the “right” to wave your middle finger at police officers has been declared expression protected by the First Amendment of the United States Constitution.
Debra Cruise-Gulyas was stopped by Officer Matthew Wayne Minard in Taylor, Michigan, back in 2017; at that time, Minard cited her for a non-moving violation. As she drove away, Cruise-Gulyas waved her middle finger at Officer Minard, who responded by pulling her over a second time; at this point, he revised her citation to a moving violation.
At issue is whether the second stop was lawful. To be so within the constitutional system as originally intended, this woman’s expression must be protected by the laws and the constitution of the State of Michigan — not the First Amendment of the United States Constitution. But predictably, all of the analysis in the media has turned to the following issue: is waving the middle finger at a police officer speech protected by the U.S. Constitution?
Judge Jeffrey Sutton of the U.S. Court of Appeals for the 6th Circuit answered in the affirmative. He wrote in his opinion that “fits of rudeness or lack of gratitude may violate the Golden Rule. But that doesn’t make them illegal or for that matter punishable.” He also explained that “Any reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment.”
Constitutional History
The First Amendment reads, in relevant part: “Congress shall make no law…abridging the freedom of speech…” Taken absent any historical context, (and ignoring the very first word — Congress) the Court’s opinion is in conformance with mainstream interpretations of Constitutional guarantees and is celebrated as such. But is this interpretation in conformance with the document as proposed to and ratified by the States?
The powers delegated to Congress by the States are enumerated in Article I, section 8 of the Constitution. Speech, religion, the press, arms, searches and seizures, procedural due process, for example, were left out of the main body of the Constitution. Fearing the general government would tread beyond the powers specifically delegated to it, some States refused to ratify unless changes (amendments) were added to guarantee their powers and the rights of individuals would not be usurped. A Bill of Rights was added, not to guarantee, grant or protect the rights included therein, but to gain the confidence in the people that the new government would not encroach upon them.
Many people are not aware that there is a preamble to the Bill of Rights, which states, in part, the following:
“The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.” (emphasis added)
Accordingly, the behavior at issue in this case, considered speech, is clearly outside the delegated power of the general government; meaning, this matter is historically outside the purview of the federal judiciary.
Because the general government was prohibited from legislating or reviewing such laws, the Tenth Amendment becomes operative, and it states the following:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
James Madison, who proposed a strong central government at the Philadelphia Convention, after his Virginia Plan was rejected outright, explained the role of the new government as follows in his Federalist #45:
“The powers delegated to the proposed Constitution to the federal govern, are few and defined. Those which are to remain in the state governments are numerous and indefinite…The powers reserved to the several states will…concern the lives, liberties and properties of the people, and the internal order, improvement, and prosperity of the states.”
The Bill of Rights was never understood to be applicable to the States. There is no historical evidence to support this notion. Even ardent nationalist John Marshall, in the 1833 case Barron v. Baltimore admitted such when he said that the first ten “amendments contain no expression indicating an intention to apply to them to the state governments. This court cannot so apply them.”
In 1925, in Gitlow v. New York, the United States Supreme Court magically “found” the authority to apply the Bill of Rights against the States supposedly hidden away in the 14th Amendment. This creation of law by the Court is both problematic and unsupported by historical records. The amendment was proposed by the 39th Congress. It did not intend incorporation of the Bill of Rights against the States. However, by this time, the Progressive era was in full swing and the Supreme Court was on a mission to rewrite the Constitution, diminishing the “separation of powers” between the States and the general government. The system created was “federal” and not “national” in nature, meaning the States were to work in unison with, not be subservient to the general government. The incorporation of the Bill of Rights was made up by a federal court, and has been the chief mechanism through with a “one-size-fits-all” form of government, with all rights and powers emanating from Washington, D.C., has arisen.
As I have said many times before, Constitutional law is not the same thing as Constitutional history; the former is the creation of mostly left-leaning federal judges who interpret the document to support the policy outcomes they desire. Typically, this results in powers the states never delegated being brought within the realm of control of the national government. This in contravention to the purpose and intent of the document as ratified — meaning, that which the states and the people through their state delegates consented.
Applying History to the Present Case
The general government was empowered to punish three crimes only: treason, piracy on the high seas, and counterfeiting. Accordingly, pursuant to Article I, section 8, the Bill of Rights, and the intent of the 14th Amendment, the ruling of the 6th District court is incorrect; in fact, they never should have heard it in the first place.
As stated above, the purpose of the Bill of Rights was to instill confidence in the public that only specifically-listed powers fall under the authority of the general government; it is more accurately a bill of restrictions. To say the natural rights expressed therein are “Constitutional” rights ignores the fact that the politicians take the opportunity to regulate them, even if they were prohibited from doing so from the very beginning. If properly understood as restrictions, then there is no latitude for Congress to usurp these rights.
How police and the citizens of the states interact, and how such conduct is to be regulated is outside the role of general government. Taking such a case to the federal judiciary is also extremely risky; imagine if they ruled to the contrary, and we end up with an opinion that affects the rights and ability of every person on this continental land mass to express themselves, with or without dignity and respect.
If we accept the notion that states and their citizens are not capable of dealing with such issues internally, without the wisdom of the federal judiciary, then we have accepted the notion that we are utterly incapable of self-governance. Worse yet, we have surrendered our revolutionary legacy.
